Common Law Spouse Not Mentioned In Will; What Now?
Almost everyone expects that, absent separation or estrangement, a married spouse is entitled to share in his or her deceased spouse's estate. The law, in fact, reflects this expectation by allowing a married spouse to apply for a share of the estate whether mentioned in the will or not. This same law allows a common law spouse the same entitlement if the deceased and the "spouse" lived together in a "marriage like relationship" for a period of two years.
Problems can arise, however, if the nature of the relationship is unclear. For example, if the deceased never advised other family members that he was co-habituating with his spouse or if s/he told others that the spouse was merely a roommate. This situation can be exacerbated if the two individuals maintained separate finances, interests, and bedrooms. Without clarity regarding the nature of the relationship from the deceased, litigation is likely to result as a recent British Columbia case, Neufeld v Dafoe, illustrates.
The deceased left his estate to three children and a stepson. The woman he lived with brought an application to the court seeking two things. First, she wanted a declaration that, at the time of death she was co-habituating with the deceased as a common-law spouse. Second, pursued a claim that as a common-law spouse she was entitled to have the will varied on the basis that it failed to make adequate provision for her as common-law wife. She claimed that she had been living with the deceased as his common-law wife for 11 years. The deceased had signed the existing will 8 years prior to his death, or 3 years after the "spouse" allegedly began co-habituating with him.
The beneficiary children objected, asserting that she was merely the roommate of the deceased. They maintained separate finances and the plaintiff "wife" had her own bedroom in the basement of the deceased's house. While they had made a few trips to family events together in the early years of their relationship, these trips had stopped, either due to a breakdown of the relationship or because of the deceased's illness. The two did not combine their tax returns. Importantly to the children, when they spoke to their father about the relationship, he had denied it was common-law and had claimed it was that of roommates.
In determining whether the applicant was the common-law wife of the deceased, the court considered the following criteria:
(1) SHELTER:
(a) Did the parties live under the same roof?
(b) What were the sleeping arrangements?
(c) Did anyone else occupy or share the available accommodation?
(2) SEXUAL AND PERSONAL BEHAVIOUR:
(a) Did the parties have sexual relations? If not, why not?
(b) Did they maintain an attitude of fidelity to each other?
(c) What were their feelings toward each other?
(d) Did they communicate on a personal level?
(e) Did they eat their meals together?
(f) What, if anything, did they do to assist each other with problems or during illness?
(g) Did they buy gifts for each other on special occasions?
(3) SERVICES:
What was the conduct and habit of the parties in relation to:
(a) Preparation of meals,
(b) Washing and mending clothes,
(c) Shopping,
(d) Household maintenance,
(e) Any other domestic services?
(4) SOCIAL:
(a) Did they participate together or separately in neighbourhood and community activities?
(b) What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?
(5) SOCIETAL:
What was the attitude and conduct of the community towards each of them and as a couple?
(6) SUPPORT (ECONOMIC):
(a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
(b) What were the arrangements concerning the acquisition and ownership of property?
(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
(7) CHILDREN:
What was the attitude and conduct of the parties concerning children?
Because of the opposition from the beneficiary children and the existing ambiguity regarding their relationship, the "wife" was forced to adduce personal evidence about the nature of the relationship. The court accepted this testimony and ruled that the deceased had misrepresented the relationship to the children because of the family dynamic.
Having determined that the applicant was the common-law wife of the deceased the court went on to consider what share of the estate she was entitled to and awarded her $60,000 or 37.5% of the estate's value based on the way the couple had maintained and shared expenses together.
The Lesson: The wife succeeded because she was able to prove that she and the deceased had co-habited. In doing so, she was required to expend time, energy and money to prove a rather personal matter. Had the will clearly stated the nature of the relationship, it would have saved all parties time, energy and money. For example, had the deceased wish to disinherit her, he could have simply stated that he left his roommate a small gift. This would have clarified his intention and provided evidence as to the nature of the relationship.
A second lesson is the reminder to update your will after significant life changes including entering into new relationships. A will should be reviewed to ensure it accurately reflects circumstances and wishes on an ongoing basis, or, in this author's opinion, at least every five years.
Neufeld v Dafoe, 2015 BCSC 1898, https://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc1898/2015bcsc1898.pdf
The content and the opinions expressed here is informational purposes only and does not constitute legal or professional advice. Nor does reading or commenting on it create a lawyer/client relationship with the author. I encourage you to contact me directly at adrianlawoffice@gmail.com if you have specific legal questions or concerns.
The author encourages you to share this article on social media.
Follow me on Twitter @gwendolynadrian